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CIVIL PROCDURE OUTLINE
PROF. D. HYMAN
FALL 2015

1. OVERVIEW

2 2. JURISDICTION

3 a.
b.
c.
d.

PERSONAL
SUBJECT MATTER
DIVERSITY
EXCLUSIVE

3 10 11 12

3. CHOICE OF LAW (ERIE)

14 4. PROCESS OF LITIGATION & REMEDIES

16 5. FINANCING LITIGATION

18 6. PLEADING (COMPLAINT/ ANSWER/ PRE-ANSWER MOTIONS)

19 7. DISCOVERY

24 8. SUMMARY ADJUDICATION /
ALTERNATIVE DISPUTE RESOLUTION (ADR)

28 9. TRIAL

33 10. APPEAL

38 1 OVERVIEW

1. Governing Rules:
a. Constitution b. Fed. R. Civ. P.
i. Not the first cut at setting rules for legal procedure ii. Response to code-based pleading, with a goal of easy use and to avoid an unduly burdensome structure

2. Core Concepts a. Judicial power and the exercise thereof i. Divided and limited

1. Judges have limited domain, constrained by procedure ii. State v. Federal power b. Upstream decisions have downstream consequences i. Example: an eased pleasing system will allow more persons to begin lawsuits, placing a heavier load on the courts and increasing the likelihood of non-meritorious cases in the system c. "Getting in done" versus "Getting it right"
i. in recent years/decades, the pendulum has shifted to getting it done with the understanding that some decisions might be wrong d. Most cases aren't tried i. Very few cases actually make it to trial e. Secondary turbulence i. Where a rule makes sense at the time of its creation but leds to more problems and makes things worse ii. If procedures lead to more arguments about procedure rather than merits of cases, there is a problem iii. Adaptive responses are always going to occur f. Lawyers make it go i. The decisions of lawyers drive outcomes g. Numerators versus Denominators i. We look to the very fringe of cases here in law school. Numerators are the minutiae of cases that actually question the rules ii. Denominators are the "super highway" where most cases are, where procedures are not up for question and cases move forwards in a generally reasonable and straightforward manner h. Compared to what?
i. Substance and procedure are different things but they are related

3. Ex ante: structure in advance, rules are ex ante, have hard edges

4. Ex post: structures based on experience, standards are ex post, are malleable, have room for improvement

2 JURISDICTION

1. State v. Plenary Jurisdiction a. The federal government has limited jurisdiction and such is the case with the judiciary b. Those matters that are not of the jurisdiction of the federal judiciary fall under the purview of the states

2. Constitutional Location a. Art. III Sec. 2 i. Scope of judicial power

1. Including diversity jurisdiction and federal questions

2. Congress can decline full scope, permissive not mandatory authority of judiciary a. Example: change of diversity jurisdiction bar of claims under $75,000 b. Art. IV Sec. 1 i. Full Faith and Credit Clause

1. Judgment in one state granted authority in another so long as the first court had authority to make the original judgment

3. General & Limited Jurisdiction a. General i. Such substantial connection to jurisdiction that any claims could be brought against a defendant b. Limited i. A minimum level of relatedness limits the claims that could be brought against a defendant

4. Traditional Notions of Fair Play and Substantial Justice a. Elements:
i. How easy is it for the defendant to "show up"?
ii. What is the forum state' interest in hearing the case?
iii. Does plaintiff have another forum in which to bring the case?
PERSONAL JURISDICTION

1. Which state(s) have jurisdiction over defendant a. Authority of states over people (to compel appearance or compliance)
b. About which state can hear a dispute

2. Types a. In personam i. Authority exercised over a person and everything they own, or may later own b. In rem i. Authority over property (naturally less expansive than in personam)
ii. Requires the attachment of property c. Quasi in rem i. Attaching one's property in a state to exercise authority of them ii. Uses property as a jurisdictional hook

3 3. Power, Notice, Consent
Power
+
+
+
+Consent
+
+
+
+Notice
+
+
+
+
+Jurisdiction?
YES
No
YES
No
YES
No
No
No

a. Power i. Pennoyer v. Neff

1. Neff received land in Oregon from the Homestead Act and hired attorney Mitchell about title. Mitchell claimed that Neff never paid his fees and then sues Neff, but
Neff had moved to California and could not be found. Mitchell posted "notice" in local paper and was later granted default judgment. When Neff title came through after the default judgment, Mitchell had it attached and Sherriff took land and sold to Pennoyer. Neff later returned and sued Pennoyer to get his land back (if the
Mitchell court lacked PJ, the judgment would be improper and Sheriff's deed void)

2. SCOTUS holds that PJ was improper in the Mitchell actions because notice was not proper (Oregon statute allowed out-of-state notice by publication)
a. Neff was not physically present in Oregon b. Property was not attached at the time of the lawsuit ii. International Shoe v. Washington

1. Shoe company based in St. Louis with salesmen across the country attempted to avoid jurisdiction in those other states by having order forms sent to STL and the salesmen acting as just independent contractors

2. State of Washington sues for unpaid unemployment insurance, serves a salesman and sends notice to STL. Int. Shoe claims they need not pay because they do not have employees in Washington.

3. SCOTUS does not strictly follow Pennoyer but instead looks to Milliken v Meyer and the idea of minimum contacts and traditional notions of fair play and substantial justice a. Minimum contacts operationalized by the number of contacts (continuous
& systematic v. Isolated & sporadic) and relatedness (related v. unrelated)
b. Minimum contacts and TNFPSJ determination operate on sliding scale iii. McGee v. International Life Ins. Co.

1. D was a Texas insurer that purchased another insurance company that had a policy with P in California. P's coverage was extended under new ownership. D
argues that California does not have PJ because lack of minimum contacts

2. Court holds that the single policy in CA was enough to establish personal jurisdiction

3. Single, related contact was enough to establish PJ
4 iv. Hanson v. Denkla

1. Trust was created with a DE company by mother for two daughters and children of a third. Mother then moved from PA to FL. Following McGee, argument made that checks sent to FL created sufficient connection to the state.

2. Court found that because there was no business in connection to FL of the trust company, no related interaction, and the mother only had limited connection or benefit from the trust company while in FL, there was no PJ over trust

3. Must establish that D purposefully availed himself to the benefits and protections of the forum state v. Shaffer v. Heitner (DE State Court)

1. Suit filed against 28 Greyhound D&O by a stockowner. D claim that in rem should apply the International Shoe standard of minimum contacts, which do not exist as the D&O have not record of being connected to DE aside from being
D&O of a company that is domiciled there

2. Court holds that intangible property cannot create jurisdiction, because it fails both minimum contacts and TNFPSJ
a. Prevents use of quasi in rem when that is the only contact and claim is not related to that property vi. World-Wide Volkswagen Corp v. Woodson

1. Family was in car crash on their way moving from NY to AZ, which caused injuries when the gas tank punctured and caught fire. Family sues retail dealer,
regional distributor, US importer, and parent corporation. Suit in Oklahoma.
Local NY retailer and regional distributor challenge PJ in OK.

2. Court finds that OK does not have personal jurisdiction over the two because they lack a connection to the state. The argument that the product could be used in OK,
is too tenuous

3. Failure of minimum contacts tests. Refuse to use foreseeability as a basis of minimum contact vii. Burger King v. Rudzewicz

1. Two MI citizens want to obtain a BK franchise, negotiate with BK district office in MI, and later receive the franchise with a payment agreement. The D then fall behind on payments and P sue in FL. P claim that their only link to the state is a 1-week training course that one attended.

2. SCOTUS holds yes PJ. D purposefully availed themselves to FL by reaching out to FL corporation and signed a K which stated that the law designated could be
FL.

Minimum Contacts
+
International Shoe

(+) Burger King
(-) Hanson

5 (-) Asahi

WWVW
Shaffer

+
TNFPSJviii. Pavlovich v. Superior Court

1. Pavlovich made a code to crack DVD security and placed it on his website for others to access. Sued by trade association in California

2. Court held that because his actions were passive (he did not reach out to others to give them the code, but instead just placed it online for others to see), there was not sufficient contacts for PJ
a. No PJ where D made no attempt to take action in the forum state ix. J. McIntire Machinery, Ltd v. Nicastro

1. McIntire was a British manufacturer whose products had reached US via distributors. One machine in NJ maimed an individual who sought to sue McIntire in NJ

2. Plurality opinion held that the company did not deliberately seek to serve the NJ
market and thus no jurisdiction (stream of commerce)

3. Note: dissent said the intermediary issue was not important and the company should be held accountable in NJ as it was the only place where case could potentially be brought. McIntire receives benefit of being able to sell in US and this overall target is sufficient x. Daimler A.G. v Bauman

1. Daimler is a German company and had distributors in US and Argentina. Suit attempts to reach Daimler for MB Argentina's actions during Argentinian War.
Uses connection of Daimler and MBUSA to California for basis of Jurisdiction

2. District Court and 9th Cir allow.

3. SCOTUS find that's there has been no connection shown between MBArgentina and California and the other connections stated are unrelated to issue here a. Policy consideration: any MNC could be called into US court if jurisdiction was found here

4. Looks to Asahi, saying that there must be interest in adjudicating and for a foreign company being sued for foreign conduct, that is not the case xi. Burnham v. Superior Court

1. Burnham's were married and lived in NJ, were then going to divorce and Mrs.
moved to CA with kids. There was agreement for divorce on irreconcilable differences, but Mr. files on desertion claims. Mrs. counters with suit in CA.
When Mr. came to visit, Mrs. had him served.

2. Plurality opinion finds that there is jurisdiction over Mr. Burnham while he is in the state…presence leads to jurisdiction

3. TAKE AWAY
6 a. Even after International Shoe, there are situations where Pennoyer rules apply i. Domicile ii. State of Incorporation iii. Physical Presence xii. Long Arm Statutes

1. States can choose to impose restraints to limit their jurisdictional reach under the
DPC (create a higher threshold for cases to fall under jurisdiction; cost conscious decision)

2. Gibbons v. Brown a. Mr. and Ms. Brown and Gibbons were in a car crash and Gibbons sues
Mr. Brown in FL. Ms. Brown later sues Ms. Gibbons in Florida for injuries from the same car crash b/c Gibbons was giving directions. Brown argues purposeful availment to FL from case 1 b. Court looks solely to long arm statute, saying that it does not cover the case because actions by Gibbons in FL were "isolated"
c. State statute reduces boundaries of personal jurisdiction b. Notice (Rule 4)
i. Actual notice: the defendant is personally made aware that he is named in suit ii. Constructive notice: sufficient effort to notify the defendant(s) given the circumstances iii. Due process requires notice in all cases iv. Rule 4(c) Service

1. Must be served with a copy of complaint

2. By a person 18+ and not a party, or

3. By a U.S. marshal or deputy marshal or person specially appointed v. Adequacy of Service

1. Due process requires that service of process be "reasonably calculated, uner all the circumstances, to apprise interested parties of the pendency of action and afford them an opportunity to present objections"
a. Mullane: Court finds that a where a bank has the addresses of all trust recipients, newspaper publication of an action does not rise to reasonable efforts to provide notice

2. Not all individuals must be provided notice, but instead, if a reasonable amount receive, it should act in the benefit of all

3. Acceptable means: mail, service on secretary of state with instructions to deliver to defendant, services to adult who works or resides with D

4. Service by publication a. In rem: not allowed b. In personam: allowed if reasonable efforts have been taken to obtain the whereabouts of D and failed

vi. Waiver of process (Rule 4(d))

1. Duty to avoid unnecessary expenses of serving the summons. P may notify D that an action has been commenced and request that the defendant waives service of a summons.
7

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